Testi-lying in NYC firearms cases

In more than twenty felon-found-with-firearm cases, judges have found the testimony of New York City police “to be unreliable, inconsistent, twisting the truth, or just plain false. The judges’ language was often withering: ‘patently incredible,’ ‘riddled with exaggerations,’ ‘unworthy of belief.'” Yet “with few exceptions”, the testifying officers have faced no consequences, “prosecutors did not notify police authorities about the judges’ findings”, and the Police Department says it has no official knowledge of most of the cases. Could this relate to the arrogance of a city administration hardened in the belief that individual rights always have to give way to the greater social good of “getting guns off the streets”? (Benjamin Weiser, “Police in Gun Searches Face Disbelief in Court”, New York Times, May 12)(& welcome Instapundit readers).

Suing for different Founders on coins

Litigants with too much time on their hands? An enactment called the Presidential Coin Act directs the Treasury to mint coins honoring each President. Stanley L. Klos of Florida is suing, claiming the ten men who served as president under the Articles of Confederation should be entitled to coins too. Under traditional concepts of legal standing, it would seem Klos might have trouble proving a particularized injury to his own legally protected interests. (Elaine Silvestrini, “Scholar Sues To Recognize ‘Presidents’ Before Washington”, Tampa Tribune, May 7)(via Above the Law).

May 12 roundup

  • Canada free speech: Islamic group files complaint against Halifax newspaper over cartoon of burka-wearing terror fan; two more libel suits aimed at online conservative voices; growing furor over complaint against Steyn/Macleans [National Post]
  • More than 5,000 students committed crimes last year in Philadelphia schools, but none were expelled — consent decrees tying system’s hands are one reason [Inquirer]
  • U.K.: Man threatened with legal action for flying pirate flag as part of daughter’s birthday party [Guardian]
  • Bankruptcy judge doesn’t plan to accept at face value Countrywide’s claim that it generated false escrow documents by mistake in foreclosure [WSJ, WSJ law blog]
  • Amid bipartisan calls to step down, Ohio AG Marc Dann [Apr. 19, May 6] hires an opposition researcher [Adler @ Volokh] on top of Washington lobbyist [Legal NewsLine], after being rebuked by judge for political suit [Dispatch]. And where’s that ethics form on the Chesley flight? [Dayton Daily News]
  • Missouri med-mal claims fall sharply after legislated damages curb [Springfield News-Leader]
  • More on Dartmouth prof Priya Venkatesan, the one who wants to sue her students — as suspected, she’s a devotee of deconstructionist Science Studies [Allen/MtC; earlier]
  • Covert plan to sabotage Chinese economy? [Wilson Center event]
  • What, never? Well, hardly ever: Docs continue to assail notion that various complications such as patient delirium, clostridium difficile infection, iatrogenic pneumothorax, etc. — not to mention falls — are “never events” [KevinMD various posts; earlier]
  • Mich. high court agrees anti-gay-marriage amendment bars municipal health benefits for domestic partners, just what key proponents had claimed it wouldn’t do [Rauch @ IGF, Carpenter @ Volokh, earlier]
  • Private service rates the safety of charter air providers — but can it afford the cost of being sued after giving a bad rating? [Three years ago on Overlawyered]

Another burden for legacy automakers

State laws providing a kind of tenure protection for no-longer-needed car dealers are among the reasons it can be extremely expensive to close down a failing marque. General Motors, which closed Oldsmobile eight years ago, “spent more than five years battling dealer lawsuits” despite having set aside almost $1 billion to handle the transition, and Ford may face similar challenges if it tries to shutter its ailing Mercury line. (Martin Zimmerman, “Mercury may be coming to the end of the road”, Los Angeles Times, May 10). Earlier: Oct. 5, 2006. For more see this 2001 speech by FTC commissioner Thomas Leary, and this article by Missouri lawyer Gene Brockland on the federal Auto Dealers’ Day in Court Act, which is exceeded in stringency by some of its counterpart laws at the state level.

“I felt my son would be at a disadvantage if he did not get the therapy offered”

A mom yields to the pressures in our educatio-legal* system to let her son be given the “disabled” label. “I realized was that among the parents I knew, well over 50 percent had their child in some form of therapy”. (Linda Keenan, Burbia, Apr. 4).

* Yes, it’s a coinage, but since “medico-legal” is by this point an accepted term, it’s probably only a matter of time before “educatio-legal” makes its way too.

NYC: No mention of Second Amendment, please

It might only confuse the jury in the city’s lawsuit against a Georgia gun shop whose wares too often found their way North (Joseph Goldstein, “Gag on 2nd Amendment Is City’s Aim in Guns Suit”, New York Sun, May 9). “Mr. [John] Renzulli, who has defended suits against the gun industry in Judge Weinstein’s courtroom before, said that in the past the defense has struck a deal with the plaintiffs on the matter: Lawyers for the gun industry won’t mention the Bill of Rights to the jury, if the plaintiffs don’t mention the National Rifle Association.”

Villarreal v. Rio Grande Regional Hospital Inc.

41-year-old South Texas personal injury solo practitioner Hermes Villarreal was admitted to a McAllen hospital on April 16, 2005, reporting that his heart was racing. The hospital put him on a 24-hour EKG. Villarreal reported being under stress, but refused a psychiatric consultation or the recommended medication. At 5 a.m. on April 19, 2005, the day of his scheduled discharge, “Villarreal summoned the nurse on duty and requested a razor, saying that he wanted to take a shower and shave his chest, because the EKG monitor leads attached to his chest were bothering him.” The nurse complied with his wishes, and Villarreal locked himself in the bathroom and committed suicide with the razor.

This was, said Villareal’s family, the hospital’s fault; since it’s South Texas, a Hildalgo County jury, after a three-week trial, awarded $9 million in March (which looks to be reduced at least to $1.64 million under Texas law capping damages). Ironically, the opening line of the Texas Lawyer story says “It was a suicide no one saw coming,” but doesn’t question the resulting jury verdict.

Somehow, the trial lawyer, Raymond L. Thomas, a close friend of Villarreal’s, interjected himself into the closing argument, telling an emotional story of a Rolex Villarreal had given him as a gift that left the jury in tears; the press coverage doesn’t acknowledge the blatant violation of ethical rules (see also Texas Rule 3.04(c)(3)), much less indicate whether he got away with it because of the failure of the defense to object or a judge’s failure to oversee her courtroom. (Jenny B. Davis, “Attorney, Interrupted: Seeking Meaning, Recovery for a Legal Life Lost,” May 5 via ABA Journal).

Asbestos litigation: foundations

Asbestos litigation has been around a long time. Early on, nothing like modern product liability law existed (see Richard Epstein’s discussion here); lawsuits resided in workplace injury law when filed in the 1920s and 30s, and were soon subsumed in workers compensation reforms.

Modern asbestos litigation began after the Selikoff study was published in 1964. In December 1965, Texas attorney Ward Stephenson filed a case on behalf of Claude Tomplait, who had worked as an asbestos insulator. Four years later, Stephenson extracted a settlement for $75,000 from seven defendants.

Notwithstanding this meager beginning, Stephenson persisted in asbestos litigation and won a major victory in Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (1973), in which the Fifth Circuit Court of Appeals found asbestos manufacturers strictly liable for their workers’ injuries. The Borel court rejected statute of limitations, contributory negligence, and assumption of risk defenses; and modern asbestos product liability litigation was born.

The litigation got another shot in the arm when New Jersey attorney Karl Asch uncovered the “Sumner-Simpson papers,” which “described in great detail the efforts of Raybestos, Johns-Manville, and other manufacturers to find out about the hazards of asbestos, develop strategies to deal with them, and–most important–to keep that knowledge from the public and workers.” These documents were put to great effect by South Carolina lawyer Ron Motley, who actually used the papers to convince a South Carolina circuit judge to grant a new trial after a jury had ruled in favor of asbestos defendants. Motley of course went on to become an asbestos super-lawyer and an architect of the multibillion-dollar multistate tobacco settlement; his antics are well-known to long-time readers of this site.

Two more foundational cases are worthy of mention. In 1981, the D.C. Circuit ruled that insurers who had written asbestos policies were liable for the maximum insured between exposure and diagnosis, rather than only in the year of diagnosis. See Keene Corp. v Insurance Co. of North America, 667 F.2d 1034 (D.C. Cir. 1981). Given the long latency between asbestos exposure and ultimate illness, the level of insurance exposure was suddenly massive. Circuit Judge Patricia Wald warned that the court’s decision “requires a leap of logic from existing precedent, for it concerns diseases about which there is no medical certainty as to precisely how or when they occur.”

In 1982, the New Jersey Supreme Court threw out the “state of the art” defense for asbestos manufacturers, in essence holding that it mattered not whether business practice was the best available to the industry at the time the injury occurred. See Beshada v. Johns-Manville Products Corp., 442 A.2d 539 (N.J. 1982). The court opined, “The burden of illness from dangerous products such as asbestos should be placed upon those who profit from its production and, more generally, upon society at large which reaps the benefits of the various products our economy manufactures. ”

Thus, in less than a decade, the law was radically shifted, and asbestos litigation was born: “The decade after Borel saw 25,000 asbestos cases filed. By 1981, more than 200 companies and insurers had been sued; by 1982, defendants’ costs had topped $1 billion.” But these early years were just the beginning…